Legal Commentary

Personal Jurisdiction and the Free Speech Protection Act

Posted on May 20, 2008
Identical companion bills have been introduced in the House (H.R. 5814) and Senate (S. 2977), both entitled the Free Speech Protection Act of 2008. The bills aim to eliminate "libel tourism," where foreign plaintiffs obtain foreign (usually European) defamation judgments against U...

Justice Scalia's One-Way Ratchet: Congress and Federal Habeas Jurisdiction

Posted on May 20, 2008
I've just posted to SSRN a draft of a new (and short) essay that is to be published later this summer by The Green Bag. The essay, titled "The Riddle of the One-Way Ratchet: Habeas Corpus and the District of Columbia," tries to shed light on a missing piece of the ever-ongoing debate concerning Congress's power over the habeas corpus jurisdiction of the Article III courts...

Obama, McCain, and the Farm Bill

Posted on May 20, 2008
David Brooks has a nice op-ed on McCain's courageous opposition to the Farm Bill and Obama's disappointing support for it. I admire both candidates, but I think that Brooks is absolutely right: McCain just scored big against Obama in the race to win the LaFollette award for political courage (see my earlier May 14th post on this topic)...

NYC, and the little notes at the end of the exam

Posted on May 20, 2008
I'm back in the Hassee now after a great trip to NYC for the New Voices in Legal Theory workshop, generously sponsored by Cardozo and organized by Ekow Yankah. I had the chance to meet for the first time a cluster of really interesting and sharp people (David Tabachnick, Vic Todros, Danny Priel, and Leo Zaibert) and to reconnect with a gaggle of other scoundrels and savages (e...

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Can't Fail at Yale

Posted on May 20, 2008
Evidently, it is impossible to flunk Yale Law School; their website reports: "All first-term courses are ungraded, and subsequent classes are graded honors/pass/low pass." This explains a lot of things.

Update: YLJ Submission Policy Revealed

Posted on May 20, 2008
I recently posted on a seeming inconsistency in the Yale Law Journal submission policy: They claim blind evaluation but allow submission of a CV. I assumed that the purpose of submitting a CV was similar to that of the fake crosswalk buttons in New York City, which have no function but are pressed by millions of pedestrians in an effort to feel like they have control over their lives; i...

Triumph for federalism in Roberts Court

Posted on May 20, 2008
Yesterday, the Court handed down the biggest decision of the term (measured by financial stakes), when it uphold Kentucky's tax exemption for interest on Kentucky's state and local bonds in Kentucky Dep't of Revenue v Davis (06-666) . For friends of federalism, the result was gratifying...

Did Hershey's Just Abandon its Trademark?

Posted on May 20, 2008
Here is something I picked up at the local Target store. It's a Hershey's-brand three-compartment silicone muffin pan. When you bake muffins in this pan, they come out - adorably, of course - in the shape of oversized Hershey's chocolate bars - complete with the Hershey's name and logo intaglioed in the shape of the finished muffin...

Currency and the Blind

Posted on May 20, 2008
Can you tell a $1 bill apart from a $20 bill with your eyes closed? For that matter, can you even be sure it is in fact a bill? If you're vision-impaired it can be difficult or impossible to distinguish US paper currency of different denominations. Unlike just about every other Western country, all of our bills are the same size, same color (excluding some recent changes to keep the North Korean government's counterfeiters at bay), and same texture...

Mais Oui: Law and Society 2008, Montreal

Posted on May 20, 2008
Ever the francophile, I am particularly excited about this year's LSA meeting, May 28 to June 1, Quebec, Canada. As the meeting is outside the United States (that happens often; last year it was in Berlin), this will be a joint meeting, this time with the Canadian Law and Society Association...

Decisions Even the Winners Won't Cite

Posted on May 19, 2008
An interesting recent posting by David Fontana on Concurring Opinions remarks on just how rarely courts cite Bush v. Gore for any proposition. This reminded me of a discussion I once had with one of my students: when asked to come up with an argument defending an aggressive use of governmental power in the War Against Terror, he suggested that the government rely on Korematsu, noting that the Court has never explicitly overruled its decision in that case...

Public Indifference versus Public Instability in Public Choice

Posted on May 19, 2008
The crocuses are out, the birds are singing, the weather is sunny but not humid: Spring is in the air, so a young man's thought's naturally turn to...public choice theory. Sitting in the Columbia Law School lobby with Matt Stephenson and Sascha Volokh at the 18th ALEA conference this weekend, I asked my perennial Arrovian question...

Professor X on college for everyone

Posted on May 19, 2008
The pseudonymous Professor X, an adjunct professor at a liberal arts college and community college in the northeast, argues against the modern trend of making university education available to everyone, including "students who are in over their heads...

Sight Seen

Posted on May 18, 2008
This afternoon, I saw a bumper sticker bearing the quotation "Dissent in wartime can be the highest form of patriotism," attributed to Geoffrey R. Stone. I think we now have the answer to the age-old question about why we write.

Weekend Trivia Challenge - Top-Ranked Canadian Law School

Posted on May 18, 2008
This past fall, Maclean's, a weekly news magazine in Canada, ranked the country's law schools. Who came out ranked number one? And since Maclean's ranked common-law schools and civil-law schools separately, you'll get credit for naming number one in either category.

What prompts structural constitutional amendments?

Posted on May 16, 2008
Carlton started a great discussion asking what the next constitutional amendment will be and has gotten a few good responses so far. I tend to think that any new amendment will be structural rather than rights-creating. But one of the comments, talking about the chances of dumping the Electoral College, suggested that if the 2000 debacle did not prompt a serious amendment move, it is hard to see what will...

Why the Court ought to deny cert in Smith v Barrow...

Posted on May 16, 2008
... And almost any other case involving Pierce/Meyer rights. The reason, of course, is federalism. Institutionally complex rights -- including rights to private property, rights to parental control, rights to separation of powers (see Calder v Bull), rights to an equally funded public education, and a bunch of others -- should simply not be federalized absent the most pressing need...

Parental rights & public schools

Posted on May 16, 2008
One of the oddest "phantom fundamental rights" is the right to raise and educate one's children. The Court repeatedly recognizes it as fundamental under the 14th Amendment, citing Pierce and Meyer, the Ur cases of modern substantive due process. But the right is almost never enforced against some of only state laws that are likely to burden it -- that is, state laws pressuring kids to attend public schools...

The Perils of Vicarious Liability in the Parenting Context

Posted on May 15, 2008
Via the indefatigable Doug at SLP, I just came across this story detailing the planned incarceration of a father for the failure of his daughter to achieve a GED degree. I'm not kidding. A man ordered by a judge to make sure his daughter hit the books has found himself in jail because she failed to earn a high school equivalency diploma...

An Open Letter to the Yale Law Journal: What is Your Real Policy?

Posted on May 15, 2008
I want Prawfs to do more hard-hitting investigative journalism; here's my contribution, which might well blow the lid off of the Yale Law Journal. So the YLJ "claims" in their submission policy that "The Journal reviews all manuscripts anonymously, without regard to the author's name, institutional affiliation, prior publications, or pending publication offers...

How does one measure "governmental centralization"?

Posted on May 15, 2008
At the risk of wearing out readers with my shilling for my ALEA panelists' articles, I mention Ezra Friedman's first-rate empirical piece investigating the relationship between governmental size and willingness to redistribute wealth. Friedman finds that counties with more decentralized expenditures are less likely to redistribute wealth...

Icahn's Eleven (Er, Ten)

Posted on May 15, 2008
With the righteous rage of an arbitrager scorned, Carl Icahn is looking to take over Yahoo so that it can be taken over by Microsoft. In a letter ostensibly to Yahoo chair Roy Bostock, Icahn says that he believes the board acted "irrationally" and "unconscionabl[y]", and announces that he will be leading a proxy fight on behalf of Yahoo shareholders...

What do bureaucrats want?

Posted on May 15, 2008
Being a panel chair for tomorrow's ALEA conference, I thought I'd go that extra mile and read the papers of my panelists in advance of the conference. All three were interesting, but Yehonatan Givati's paper on ?Strategic Statutory Interpretation by Administrative Agencies? inspires me to ask the question: What do bureaucrats want? More pointedly, why do academics -- especially economically oriented ones -- persist in assuming that bureaucrats want power? Givati sets up a model rooted in the assumption that "as long as no appeal [to a court] is provoked, a more aggressive interpretation [of statutes] is preferred to a...

What will be the Next Constitutional Amendment?

Posted on May 15, 2008
It's been 37 years since the last contemporaneously proposed and ratified constitutional amendment (I'm setting the aside the 27th Amendment, with it's tortured 200-year history). There have been only two comparably long periods in our history without an amendment, the 61-year period between the 12th and the 13th Amendments, and the 43-year period between the 15th and the 16th Amendment...

AALS Section on Agency, Partnerships and LLCs: Call for Papers

Posted on May 15, 2008
You may have seen this news a month ago, but now that the summer is starting, perhaps a reminder would be helpful. The Section on Agency, Partnerships and Limited Liability Companies is calling for papers for the 2009 AALS Annual Meeting in San Diego...

My memo on exam-writing

Posted on May 15, 2008
I have given my students the attached memo for the last three years. Download Exam_memo.pdf Feel free to use it yourself, if you like: I hereby waive any copyright. The memo offers precisely the same advice as Eric Johnson's recent post. The essential point is that facts + law = analysis, while Law alone = vomit...

Your Chance to Speak to New Legal Scholars

Posted on May 14, 2008
At the end of June, the AALS sponsors a conference for law professors just entering the profession. The program includes panels on teaching strategies, learning theory, law school politics, and other essentials for newcomers. There's also a panel on scholarship, a sort of "how to" session...

What's Your Advice to 1Ls on Exam Writing Technique?

Posted on May 14, 2008
While grading exams ? what I?m doing now ? I worry that I am giving grades that largely indicate how well people can write law exams, rather than a purer measure of how well they?ve mastered the material in the course. Especially for 1Ls. It seems inconsistent with basic notions of fairness that some students, tipped off by a mentor on how to write a great exam, get glowing report cards, while other students, who may have had similar great potential, get mediocre marks for lack of knowing what to do with their bluebooks...

The Edwards Endorsement

Posted on May 14, 2008
So Edwards is going to endorse Obama. The initial news coverage makes it sound as if Edwards decided on the endorsement now that it is sufficiently likely that Obama will be the Democratic nominee. But I wonder if there was another part to the calculus--perhaps Edwards' sees his leverage with the Obama campaign as being particularly good at this moment...

Note-spotting

Posted on May 14, 2008
Here at Prawfsblawg and elsewhere, a brief flurry of attention descended on an anonymous case comment in the Supreme Court issue of the Harvard Law Review, which began, modestly enough, "The history of the Fourteenth Amendment is one of hierarchy and capitalism...

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